SAMPLE NOTES

WEEK 6:

E East, A Treatise of the Pleas of the Crown, Vol 1, p 406, defined the common offence of assault; ‘an assault is any or offer with force and violence to do a corporal hurt to another, whether from malice of wantonness, as by striking him, or even by holding up one’s fist at him in a threatening manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against the person. Where the injury us actually inflicted, it amounts to a batter (which includes an assault) and this, however small it may be, as by spitting in a man’s face, or any way touching him in anger without any lawful occasion. But if the occasion were merely accidental or undersigned, or if it were lawful… it is no assault or in the law”.

In New South Wales, the penalty for assault is prescribes in statutes; Act 1900 (NSW) s 61. However, the definition continues to be found at common law.

COMMON ASSAULT

Common assault is the most basic kind of assault, and can be tried either on indictment or summarily. Historically, there was a distinction between assault and battery. This is no longer the case and the term ‘assault’ merges them. The current concept3 of common assault incorporates two historical offences of assault: (a) (Psychic) Assault: where the defendant intentionally or recklessly put the victim in fear or imminent unlawful contact or physical harm- R v McNamara (1954) VLR 291. Recklessness- Subjective. (b) Battery: where the defendant intentionally or recklessly applies unlawful physical force or contact against the victim- R v Venna (1976) QB 421, Fagan v Metropolitan Police Commissioner (1969) 1 QB 439. Recklessness- Subjective The defendant will generally be charged with assault whether they committed a (psychic) assault or a battery. AGGRAVATED ASSAULT- SPECIFIC INTENT Categories- - Further specific intent - Injury - Victim - Weapon or instrument - Dangerous substances - In company

Specific Intent To - ss 27-30 To commit - ss 33B, 58 To resist or prevent apprehension- s 33B, 58 Injury Actual Bodily Harm- s 59(1) Wounding- s33- intent to do GBH. Wounding is a puncture, GBH- s33 (with specific intent), s35(2)- reckless, 254- negligent SAMPLE NOTES

Victim Police officer- ss58, 60 Law Enforcement Official- s60A Child (at birth)- s42 Member of clergy- s56 School staff or student- s60E Weapon/Instrument Ss33, 33A, 33B Dangerous Substance s38, 39, 41… In Company S35(1)

Mens Rea The mens rea for assault is specified at common law. The mens rea of common assault is intentionally or recklessly; (a) creating an apprehension of imminent unlawful contact (b) effecting unlawful contact

Intentional Assault It is clear from MacPherson v Brown (1975) 12 SASR 184; s 20 (SA), that assault can be committed intentionally. It is unnecessary that the intentional application of force be accompanied by hostility; Boughey v R (1986) 65 ALR 609- D was a doctor who applied manual pressure to V’s carotid arteries intending to increase the victim’s sexual excitement for the purpose of sexual activity. When the victim died due to D’s actions, he was charged with murder. He argues no intent to injure her, however it was held that hostile intent is not an ingredient to the offence of battery at common law where for is intentionally applied to the victim.

Reckless Assault An assault can be committed where the defendant knows his conduct would possibly (a) give the victim reasonable grounds for apprehending imminent unlawful contact (psychic) (b) effect unlawful contact (battery) The authorities have made it clear that the standard for reckless assault is that of “possibility” rather than “probability”- MacPherson v Brown (1975) 12 SASR 184, Coleman v R (1990) NSWLR 467.

R v Venna (1976)- the defendant lashed out at police officers seeking to arrest him, resulting in the defendant fracturing one police officer’s hand. He was charged with assault occasioning actual bodily harm. He stated that he had not intended to hit the victim, but was kicking in an attempt to get off the ground. It was held that if he recognised the possibility of unlawful contact he has the mens rea for assault. He was found guilty.

RECKLESS ASSAULT MUST BE SUBJECTIVE MacPherson v Brown (1975) stresses that the defendant is not to be judged by an objective standard of what a reasonable person would have foreseen. In this case, the SAMPLE NOTES trial judge held that, while he doubted that the defendant was aware that the victim would be frightened by his conduct, he had been reckless and ought to have known that his conduct would give reasonable grounds for creating that fear. He was found guilty of assault. On appeal, the trial judge’s decision was overturned. Brad CJ (at 188) stated “it is contrary to fundamental principles… to judge a man… not by his actual intention, knowledge, or foresight, but by what a reasonable prudent man would have intended, known or foreseen in the circumstances.”

Negligence A common assault cannot be committed negligently. However, sections have been introduced to cover cases where the defendant has negligently cause an injurt (s 54 NSW). In these cases, the prosecution must prove the level of negligence was criminal- R v D (1984) 3 NSWLR 29.

Actus Reus The for assault is also specified at common law; The defendant must; (a) Act so as to create an apprehension of imminent unlawful contact (psychic assault) (b) Apply unlawful contact against the person of another (battery)

Psychic Assault Positive Act Must be a positive act. An omission to act does not constitute an assault- Fagan v Metropolitan Police Commissioner (1969). The use of words has also been held to constitute a positive act in all common law jurisdictions- Tout v R (1987), R v Knight (1988 35 A Crim R 314.

State of Mind of the Victim- Apprehension of Harm The victim must have been put in the fear of imminent unlawful contact As a consequence, the victim must be aware of the threat. If they are unconscious of asleep, then a psychic assault cannot be committed. In Pemble v R (1971) 124 CLR 107 the victim was unaware that the defendant was pointing a rifle at her back. Menzies J therefore held that the defendant had not committed an assault. It has been suggested that the victim’s fear must be reasonable in the sense that a reasonable person would have also been in fear- Barton v Armstrong. Questions are more likely to arise around whether the defendant had the necessary mens rea to create the apprehension of imminent unlawful contact rather than if the victim’s fear was reasonable. If the victim’s fear is unreasonable, and the defendant has no knowledge of this timidity, then clearly the accused will not have the mens rea. Accused takes the victim as they find them (whether timid or robust)- Ryan v Kuhl

Ability to Execute Threat The defendant does not need to be able to execute the threat, as the essence of the offence is the effect that is created in the victim’s mind. Thus, where the defendant points a toy gun at the victim which the victim believes to be real, he can be convicted with assault- R v Everingham (1949)

SAMPLE NOTES

Imminence of Harm At common law, the victim must apprehend “imminent” or “immediate” unlawful violence, threats of future violence should not amount to an assault- R v Knight (1988). “Immediate and Continuing Fear” The requirement of immediacy can cause some issues. However, the courts have used the concept of ‘immediate and continuing fear’ to interpret the requirement of imminence in a way which is sympathetic to the plight of the victim. Zanker v Vartzokas (1988)- the victim accepted a life from the defendant. During the trip the accused offered her money for sexual activity to which she declined; he persisted. She demanded to be let out of the car but he sped up, even when she threatened to jump out. The defendant then said, “I am going to take you to my mate’s house. He will really fix you up”. She felt so much fear that she opened the door and jumped out resulting in some injuries. The magistrate dismissed the case due to lack of imminence in the threats. White J allowed the appeal, holding that the concept of a continuing threat should be applied.

Threats made over the Telephone In Barton v Armstrong (1969) 2 NSWR 451, the defendant made threats over the phone, and it was held that he could be found guilty of assault provided that the threats were sufficient to ground a fear or imminent violence in the victim’s mind- Taylor J (at 455)- “if the threat produces the fear or apprehension of physical violence, then I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached.” Silent Phone Calls: Threatening phone calls have caused problems for courts in assessing imminence of threats that may be made appreciable distances away. R v Ireland; R v Burstow- silence can amount to assault.

Conditional Threats Conditional threats are threats where the defendant imposes some condition upon the victim, which if the victim does not meet, he will inflict some violence. This raises the issue of imminence, because if the victim meets the requirements, there would be no need to apprehend imminent unlawful contact. The requirement of imminent infliction of physical harm is the ultimate factor in determining liability The courts have approached conditional threats in two ways - Looking at the words of the threat - Considering whether the defendant had the right to impose the condition

Infliction of Harm as a Result of Psychic Assault The accused can be charged with an assault occasioning actual bodily harm if his psychic assault causes the victim to act in such a way as to inflict actual bodily harm. The mens rea is the same as that for common assault. The prosecution only needs to prove the mens rea for a basic assault and does not need to prove any mens rea in relation to the harm inflicted. The prosecution must establish that - The defendant committed an assault - The victim suffered actual bodily harm - The defendant caused those injuries SAMPLE NOTES

Crimes (Domestic and Personal Violence) Act 2007, No 80- usually what this is charge through as they do not have to prove apprehension of harm

BATTERY ASSAULT The Use of Force The application of unlawful contact, intentionally or recklessly, to a victim’s person without consent. An omission to act cannot constitute a common assault- Fagan Does not need to be direct contact- Heystead v Chief Constable of Derbyshire Mere touching can amount to assault eg spitting. However everyday contact is not subject to criminal law.

Lawful Correction 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

CONSENT TO HARM The prosecution must prove that the victim did not, expressly or impliedly, consent to the assault. R v Schloss and Maguire: ‘The term assault of itself involves the notion of a want of consent. An assault with consent is not an assault at all’ Consent can be express or implied Daily social life is assumed to be filled with implied consent, eg Boughey v R: ‘commonplace, intentional but non-hostile acts, such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus’ are excluded from assault

Limits to Consent Consent only extends to common assault. The common law asserts that people cannot consent to actual bodily harm, without good case- R v Brown

Sadomasochism R v Brown [1994] 1 AC 212 remains the seminal case on the issue of consent. SAMPLE NOTES

The 5 appellants had engaged in consensual, sadomasochistic sexual activities. Lord Templeman stated: I am not prepared to invent a defence of consent for sado- masochistic encounters which breed and glorify cruelty But R v Wilson – a husband branding his wife’s buttocks at her request lawful

Personal Adornment Cultural practices have commonly seen infliction of harm for personal adornment Body piercings, tattoos, footbinding, headmoulding, circumcision, etc R v Wilson – branding treated as akin to tattooing What’s the line? FGM – Crimes Act 1900 (NSW) s 45

Surgery Lawful with a patient’s consent Consent must be voluntary and informed Must pertain to the act performed Emergencies and unconscious patients serve as an defence – the defence of necessity A surgeon who operates without consent commits assault

Violent Sports Boxing lawful when engaged in the professional or regulated context Contact sports create an implied consent for the risks of harm that come with the sports This includes minor infringements of rules However mass violation of rules can result in assault being upheld: R v Carr (NRL match where a headhigh tackle broke the victim’s jaw) Contra: Re Jewell However culture in Australian sport to deal with these issues ‘in-house’ – generally left the disciplinary actions of the particular sport

Rough Horseplay R v Aitken: Three accused and victim were members of Royal Air Force in the UK. Completed flight training went out to celebrate still wearing their flame-resistant flight suits. Copious libations were consumed. Two of the men fell asleep late in the festivities, as a prank set fire to their suits. They woke up and everyone treated this as a joke. Revelling in the success of this prank, 3 accused followed Flying Officer Gibson, caught him and poured spirits on his suit and set fire to it. Flames engulfed Gibson who suffered serious burns. Court acquitted the men on the ground that Gibson had been a willing participant in the night of ‘rough and undisciplined mess games’

Assault During Public Disorder In 2005, the NSW parliament hastily enacted the Law Enforcement Legislation Amendment (Public Safety) Act 2005 in response to the Cronulla Riots. The act inserted a new offence into the Crimes Act “Assault During Public Disorder (1) a person who any person during a large scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment of 5 years (2) a person who assaults any person during a large scale public disorder and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years” SAMPLE NOTES

Aggravated Intoxicated Assaults In 2014, the NSW govt. attempted to introduce a new category of aggravated assaults, namely, assaults committed when the offender was intoxicated in public- Crimes Amendment (Intoxication) Bill 2014. Refer to text book pg 634 for further info on this.